Don’t “Gag” on your Publishing Contract

Today's guest post relates to a topic I'm seeing more than I'd like to in the publishing lawyer side of my day: contracts containing a "nondisclosure" clausewhich prohibits the author from discussing the publisher--or the author's relationship with the publisher--in public.

Too many authors sign these contracts without an understanding of industry standards -- or the fact that this kind of nondisclosure clause gives the publisher far more power than it deserves. As a result, I want to shed some light on these clauses, and why they're bad news for the author.

Nondisclosure is not the same as "confidentiality."

Some contracts contain a "confidentiality" clause which states that the parties (if mutual) or one party (negotiate for mutuality whenever possible) cannot disclose the other party's "confidential information" in public without permission from the party which owns the information. This is more common in business and employment contracts, which often involve the disclosure of business methods and proprietary information (like software), than in publishing.

If you work for a company which owns proprietary information or uses trade secrets, you've probably seen this kind of clause before. It appears in employment contracts, contractor agreements, and "nondisclosure agreements" (also known as NDA's).

Confidentiality provisions don't make sense in the publishing context the way they do in business.In publishing, the author's information (the manuscript) is supposed to become public (that's what publishing means, yo) and the publisher generally doesn't share trade secrets or other confidential information with authors. Therefore, there's really no reason for confidentiality provisions.

However, sometimes publishers do include a confidentiality clause in publishing agreements. A "standard" confidentiality clause should always be mutual and should state that neither party to the contract can disclose the other party's legally protectable trade secrets and proprietary information without the permission of the party that owns that information. Although obnoxious, this kind of clause isn't necessarily a deal breaker -- as long as it's not overly broad and relates only to certain kinds of "legally protectable" confidential information.

Even so, I'd suggest you ask the publisher to remove it.

If you see a confidentiality clause in your contract, don't sign without an attorney or an agent reviewing the contract and either negotiating it out or letting you know that the wording and content isn't a trap.

By contrast, "Nondisclosure" provisions are contract clauses which prohibit one or both parties from any public discussion of either: (a) the terms of the contract, or (b) their relationship.

General "nondisclosure" provisions do not belong in a publishing contract.

Good publishers don't want to stifle the author's ability to talk about the publisher or the publishing process. Publishers would prefer that authors spoke about them in a positive way, of course--and authors should behave professionally in public whether or not a contract requires it. However, it's dangerous for the author, and for publishing generally, for publishers to try to stifle the author's freedom of speech.

Publishers can attempt to enforce a general nondisclosure provision in ways which prevent the author from speaking out if the publisher fails to comply with its contractual obligations. Sometimes, these clauses can be invoked to stop the author from mentioning when the publisher behaves inappropriately, or to prohibit authors from warning others away from the publishing house.

Overreaching nondisclosure provisions can be used to prohibit the author from speaking either in public (e.g., on blogs or social media) or in private - meaning that the author is completely barred from discussing the publishing house in any way without the publisher's permission(which publishers like this usually grant only for purposes of advertising the author's book and experience in positive ways).

If you're offered a contract which contains a nondisclosure provision, ask the publisher to remove it. If the publisher refuses, be willing to walk away--or to hire an attorney or agent to negotiate on your behalf.

Don't let yourself get stuck in a situation where you have no power to speak about your experiences. Insist on industry-standard contract terms which don't prohibit you from discussing your publishing experience. If you're not sure what that entails, or how to ensure you've obtained it, don't sign anything without an agent or lawyer reviewing the contract on your behalf.

Finally, remember: HAVING NO DEAL AT ALL IS BETTER THAN HAVING AN UNFAIR DEAL OR A DEAL YOU REGRET.

This can be difficult to remember in the heat of the moment, or when your dream appears to be on the verge of coming true, but remember: Bad contract language can turn that dream-come-true into a waking nightmare. Keep your business wits about you and insist on a contract that respects your legal rights as well as the publisher's interests.

What do you think about confidentiality in publishing?

Susan Spann is a California transactional attorney whose practice focuses on publishing law and business.She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Susan Spann is a California publishing attorney and the author of the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released in 2014, and the third installment, FLASK OF THE DRUNKEN MASTER, released on July 14, 2015. Susan is honored to be the 2015 RMFW Writer of the Year, and when not writing or practicing law, she raises seahorses and rare corals in her marine aquarium.You can find her at her website, on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

With some publishers, I suspect the goal is to keep the author from revealing the amount of an advance or other contract provisions that differ from what other authors might see in their own contracts. It’s similar to the old corporate rule that employees were never to share their pay rates or bonus arrangements….and that kept certain groups of people underpaid for a long, long time. Signing a confidentiality or nondisclosure agreement can definitely be risky business. Excellent post, Susan (as always).

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